Citation Nr: 1719345
Decision Date: 06/01/17 Archive Date: 06/14/17
DOCKET NO. 14-13 355 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California
THE ISSUE
Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and D. M., friend
ATTORNEY FOR THE BOARD
K. Hughes, Counsel
INTRODUCTION
The Veteran had honorable active military service from April 1951 to April 1954.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in in Muskogee, Oklahoma. The Veteran's claims file is now in the jurisdiction of the Oakland, California VARO.
The Veteran had also disagreed with an April 2011 rating decision which denied a compensable evaluation for bilateral hearing loss (the interim July 2013 rating decision assigned an increased 30 percent rating from October 3, 2011, the date of receipt of the Veteran's claim for increase as determined by the RO). The matter of an evaluation in excess of 30 percent for bilateral hearing loss was addressed in the March 2014 Statement of the Case (SOC). However, the Veteran did not perfect his appeal as to this claim by filing a substantive appeal (his April 2014 VA Form 9, Appeal to Board of Veterans' Appeals, was limited to the matter of entitlement to TDIU). Thus, the matter of an increased rating for bilateral hearing loss is not before the Board at this time.
In March 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).
FINDINGS OF FACT
1. The Veteran has a combined 70 percent disability rating with one disability independently rated as 50 percent disabling.
2. The Veteran's service-connected disabilities have prevented him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him.
CONCLUSION OF LAW
The criteria for a TDIU rating have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 4.16 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).
A claimant need not show 100 percent unemployability in order to be entitled to TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The criteria of 38 C.F.R. § 4.16 establish a flexible standard for TDIU that takes into account the claimant's individual circumstances, to include his or her education and occupational experience. Id. The Board cannot deny TDIU without producing evidence, as distinguished from mere conjecture, showing the claimant can perform work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294, 297 (1994).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.
Here, the Veteran has met the schedular percentage requirements for TDIU throughout the appeal period since the receipt of his November 2011 claim for such benefits. The combined rating for his service-connected disabilities is 70 percent. His service-connected PTSD has been individually rated as 50 percent disabling since October 2007 and he has had a combined 70 percent rating from November 3, 2011, the effective date of the increased 30 percent rating for his bilateral hearing loss. Thus, the only issue that remains is whether his service-connected disabilities prevent him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him.
The Veteran's November 2011 (and August 2013) VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, shows that his highest level of education is 2 years of high school. He has no other education or training (during his March 2017 Board hearing, the Veteran testified that being a truck driver is the only job he has had since separation from service in 1958). He claimed that his service-connected PTSD has prevented him from securing or following any substantially gainful occupation. During his Board hearing, the Veteran testified that he had to retire because his route as a truck driver required navigating heavy traffic which caused stress (he had been in "three different, little accidents in one month"). He also testified that, in regards to his service-connected bilateral hearing loss, he is unable to hear sirens, an ambulance, highway patrolman or something coming up until it is "right up behind me."
In a July 2011 statement, the Veteran's wife reported that she has to be "almost right in front of him with raised volume in order to be heard" and expressed concern when the Veteran is outdoors because she worries that he will not hear most noises, including those which would alert him to possible problems.
A March 2013 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) includes the opinion that "[t]he Veteran will have difficulty understanding conversation without the benefit of hearing aids. This will be more difficult in the presence of background noise. Veteran will be able to entertain physical and sedentary type employment. Veteran will not be able to maintain gainful employment in noisy work setting, in group setting, or where he would have to communicate over the phone."
A March 2013 PTSD DBQ includes the opinion that the Veteran's PTSD does not render him unemployable because he "had a long work history and is now retired" and "he would be slightly restricted as he has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation." A February 2017 VA PTSD DBQ notes no change in the Veteran's PTSD symptoms.
A March 2013 statement from the VetCenter, from where the Veteran has received treatment since August 2005, includes the impression that his PTSD was chronic and severe.
An April 2014 statement from a VetCenter Readjustment Counseling Therapist notes that, although the Veteran is in receipt of treatment for PTSD, he has difficulty managing stressors and anger and "would not be able to resume work, as [he] would still not be able to tolerate the stressors of work."
Similarly, a letter from the Veteran's employer, received in April 2014, notes that he drove a time sensitive run nightly which forced him to deal with rush hour traffic in both Los Angeles and Sacremento on a daily basis. The employer further noted that this job involved "a great deal of stress...which was the primary reason for" the Veteran ending his employment.
A February 2017 hearing loss and tinnitus DBQ note that the Veteran's hearing loss impacts the ordinary conditions of his daily life, including ability to work, because he has difficulty clearly understanding a person's voice, especially if they talk low.
The Board finds the statements from the Veteran, his wife and employer combined with the opinion from the VetCenter to be probative evidence weighing heavily in favor of the his claim for TDIU. Although the March 2013 and February 2017 PTSD DBQs found that the Veteran was not unemployable as a result of his PTSD, these opinions do not address the combined impact of his service-connected disabilities on his ability to engage in employment or identify the types of employment that remain feasible despite his limited education and lack of experience in forms of employment other than as a truck driver. As such, the Board finds that these opinions do not constitute probative evidence that the Veteran's service-connected disabilities, taken together, do not preclude substantially gainful employment. Accordingly, resolving any remaining reasonable doubt regarding the degree of disability/impairment in the Veteran's favor, as required (see 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), the Board finds that a TDIU rating is warranted throughout the appeal period since his November 2011 claim for such benefits.
ORDER
A TDIU is granted subject to the controlling regulations applicable to the payment of monetary benefits.
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M.C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs